Appeals Court Rules in Favor of Aged-Out Alien

An appeals court recently ruled that all derivative beneficiaries who have aged-out may be able to have their petitions automatically converted to the appropriate category and retain the priority date issued in the original petition.

The decision by the 5th Circuit Court of Appeals in Khalid v. Holder came less than one week after another court, the 9th Circuit, held that automatic conversion under the Child Status Protection Act did not apply to F3 and F4 derivatives. F3 refers to married sons and daughters of U.S. citizens while F4 refers to brothers and sisters of adult U.S. citizens. This disagreement between different federal courts, also called a circuit split, will likely reach the U.S. Supreme Court for resolution.

Khalid v. Holder was about a child from Pakistan who entered the U.S. as a visitor. Khalid’s U.S. citizen aunt filed an F4 petition for her sister, Khalid’s mother. Khalid was 11 years old when the petition was filed. By the time his mother’s priority date became current, he was already 22 years old. Thus, when he applied for adjustment of status, Khalid was no longer a “child” so his application was denied.

After becoming a lawful permanent resident, Khalid’s mother filed a second preference petition for him. Pursuant to the automatic conversion clause of the CSPA, she asked that the petition be given the June 1996 priority date. However, the USCIS assigned the petition a priority date of November 2007, which was expected to be current by 2015. Khalid also filed for adjustment under Section 245(i) on the basis of his aunt’s petition but the USCIS also denied this application.

The government then placed Khalid under removal proceedings. Khalid argued that he could retain the June 2006 priority date. If that date were used, he would be eligible for a visa and need not leave the United States. Both the immigration judge and Board of Immigration Appeals disagreed with Khalid, prompting him to appeal to the 5th Circuit.

The provision at issue is Section 1153(h)(3), which says that if an alien’s age is 21 years or older the petition is automatically converted to the appropriate category and the alien retains the original priority date issued upon receipt of the original petition.

If the interpretation in Khalid is ultimately upheld, thousands of families, especially those coming from oversubscribed countries such as the Philippines, would be reunited faster.

Allowing priority date retention to F3 and F4 derivatives would significantly cut down visa waiting time. For example, say Mr. A, a national of the Philippines, was issued an immigrant visa on the basis of an F3 petition filed in 1992 by his U.S. citizen mother. Mr. A’s daughter, the derivative beneficiary in the original petition, was unable to immigrate because at the time that a visa number became available to her father, she was already 25 years old. Even after applying the proper CSPA formula, she was still over 21 years of age.
Mr. A then files an F2B petition for his daughter, which is the appropriate category for a petition filed by an LPR parent for an unmarried child 21 years of age or older.

If an F2B petition is filed today, it will take about 10 years before a visa becomes available to the beneficiary. Following the court’s interpretation in Khalid, the petition for the daughter can be given the priority date of the petition filed by her grandmother. With a 1992 priority date, the daughter will be able to adjust her status immediately.

This was the understanding of many immigration lawyers and even the BIA in an unpublished case. That was until 2009 when the BIA came out with a restrictive interpretation of the automatic conversion clause and denied F3 and F4 derivative beneficiaries the benefit of the provision.

The BIA reasoned that the CSPA was not meant to address delays in waiting for a visa and that the Congress could not have intended beneficiaries in new F2B petitions to cut in front of the waiting line.

The 5th Circuit criticized the BIA’s reading as contrary to the plain language of the law. The court found that the statute, read as a whole, clearly intended the automatic conversion clause to benefit all derivative beneficiaries.